Category Archives: Enforced Disappearance Advocacy

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By Ram Kumar Bhandari
This column originally appeared in issue #671 of the Nepali Times, Kathmandu

My father, Tej Bahadur Bhandari, was on his way to the CDO office in Besisahar on 31 December 2001 when a group of armed security personnel arrested, blind-folded, and tortured him on the street in broad daylight. He was ever seen again.

Those responsible for my father’s disappearance remain in the service: Pitamber Adhikari is now an SSP, Major Santosh Singh Thakuri is in the army. They denied detaining my father, and 13 years later the state still doesn’t formally accept that it took him in.

Lamjung district was in the throes of conflict then, and the royal government had adopted TADO (Terrorism and Destructive Activities Ordinance) to crack down on the insurgents. After the Royal Nepal Army entered the war in November 2001, many innocent citizens were killed, tortured, and forcibly disappeared. School teachers, student activists, community leaders, educators, ordinary peasants, and unemployed youth were targeted by both the state and the Maoists.

My father was 56 then, and a retired teacher and social worker. He had been threatened by the security forces and CDO Shiva Prasad Nepal had called him in for questioning, and released him due to lack of evidence.

During conflict, it was not easy for citizens to access the Supreme Court but, even so, many families filed writs of habeas corpus which were mostly dismissed without proper investigation. After the signing of the Comprehensive Peace Accord (CPA), the Supreme Court passed a decision on disappearance cases on 1 June 2007, but none of the components of that decision have been implemented.

The Court ordered that the government enact a law to criminalise enforced disappearance in line with the International Convention for the Protection of all Persons from Enforced Disappearance, establish a high level commission of inquiry on disappearances in compliance with the international criteria on such commissions of inquiry, require investigations and prosecutions of persons responsible for disappearances, and provide for adequate compensation and relief to the victims and their families.

We, the surviving families of the disappeared, continue to live every day through the grief of not knowing the truth about our loved ones. And we still face security threats. The perpetrators of the abductions, torture, disappearances, and killings during the war are in positions of power and many have been promoted. There is a conspiracy of silence between the former warring sides not to rake up war time atrocities.

I speak out against human rights abuses, I name the perpetrators publicly, but the police, the army, bureaucrats, political leaders listen and take no action. There are veiled threats, but I have no fear. I am committed to challenging the crime in a court of law to demand truth and justice however long that takes. And I speak for thousands of other families whose fathers, brothers or sons were also disappeared.

We dream of justice and dignity, but first we want the truth. Our family life has been destroyed, many of us lost bread-winners, and our extended grief has no closure. What does ‘family’ mean, after all? Can the state and the politicians ever compensate for the loss of our family life?

The former enemies are now represented in the state. Can they clarify why the proposed Disappearance Commission itself disappeared? The alleged perpetrators of war crimes like Raju Basnet, Ajit Thapa, Kuber Singh Rana, Ramesh Swar, Pitamber Adhikari, Shiva Prasad Nepal, Dhruba Shah, Niranjan Basnet, Balkrishna Dhungel, and many others remain in powerful positions.

We have seen in the cases of Dekendra Thapa and Krishna Adhikari that the government and political leadership is incapable of remorse, of feeling our pain, or addressing our need for truth and justice. The state continues to deny forced disappearances even happened. We have been left dangling, where do we now go for answers?

Doesn’t our country have to respect the rights of its citizens? Doesn’t it have to respect the rule of law and international covenants that it is signatory to? My father and other disappeared citizens were supporting social transformation, speaking out against structural violence, and struggling to protect the local democratic space. Why was that a crime?

The state should start by publicly apologising for the brutal past of which it was a participant. Then we want it to tell us the truth, for once. After that we want justice for the crimes committed. My father would have been 68, I owe it to his memory to continue this struggle.

I remember those days distinctly. When the armed conflict began in Nepal in 1996, the state targeted student activists, community leaders, rural peasants and teachers, among others and subjected them to arrest, inhuman torture and illegal killing. For 10 years, the state celebrated its democracy while simultaneously destroying citizens’ right to life. As American public intellectual Noam Chomsky has stated, “Democracy is a game for elites, it’s not for the ignorant masses, who have to be marginalised, diverted and controlled—of course for their own good.”

In total, more than 1,400 family members, relatives, fathers, sons, mothers and daughters—all innocent citizens—were detained, tortured, disappeared and killed during Nepal’s armed conflict. Today, surviving families have no voice and remain marginalised from the political process. The state and political parties, in the name of democracy, have diverted the agenda of the disappearance movement, ensuring political control while avoiding state apology and recognition.

Since the Comprehensive Peace Agreement (CPA) was signed in 2006, families have demanded the disclosure of the truth, the return of human remains, public acknowledgement and respect for family rights. However, these demands go unanswered and the more time passes, the more difficult it becomes to sustain the necessary pressure on the Nepal government to hold the perpetrators accountable. The government is not serious about addressing the legacy of Nepal’s conflict. Hope for a strong independent commission for the investigation of disappearances has been abandoned while the new Truth and Reconciliation Commission Ordinance has failed to define disappearance as a crime against humanity and address family support or the exhumation process and has created the capacity for perpetrators to receive amnesty.

When I was a student at Amrit Science College in 1999, many students were detained illegally and forcibly disappeared by security forces. On June 17, 1999, student activists Bipin Bhandari and DB Rai, along with senior student leader Purna Poudel were forcibly taken into custody and disappeared. Krishna Bahadur Basnet, a school teacher, was taken from his family in the middle of the night from Suryapaal, Lamjung, while his pregnant wife Maiya lay sleeping. The accused police officer still serves on the force and has even been promoted. Jai Kishor Lav, whose son Sanjib was disappeared from Dhanusha, died before knowing the truth during his fight against state crimes. The alleged officer behind his son’s disappearance, Kuber Singh Rana, has been promoted to head of police.

Similarly, Dipendra Pant from Gorkha and Gyanendra Tripathi from Chitwan were detained and disappeared at the Bhairavnath Battalion along with 49 young activists after illegal arrest, while their captor, in-charge Raju Basnet, has been promoted to brigadier general of the Nepal Army. On Dec 31, 2001, Tej Bahadur Bhandari, a school teacher, was arrested and taken from Lamjung in broad daylight while hundreds of eyewitnesses looked on but the state has never admitted his arrest. The alleged perpetrators, then CDO Shiva Prasad Nepal, DSP Pitamber Adhikari and Major Santosh Singh Thakuri have been promoted.

Following the end of the conflict, the families of the disappeared started to unite in hopes of achieving justice through a disappearance commission. Now the commission itself has disappeared. In 2006, transition was in the air and the families had certain expectations from the state. These hopes have since been dashed. The families were never consulted in the development of transitional justice mechanisms, the constitution remains unwritten and there is little movement regarding local development.

Instead of providing answers or admitting the disappearances, the Nepali state distributed monetary compensation, taking advantage of the victims’ economic needs, and tactically diverted the truth agenda. Instead of creating sustainable transitional justice mechanisms, the government drafted a Truth and Reconciliation Commission without consulting the victims, thus strategically diverting the justice agenda. Instead of addressing the needs of the victims and the delivery of justice, the state followed the prescriptions of donors, diverting the victims’ needs and agency in the name of superficial peace and reconstruction.

As such, there is little hope for progress. Supreme Court Chief Justice Khil Raj Regmi, the current caretaker of the Nepal government, has forgotten his own work after his disappearance from the Supreme Court, and political leaders have connived with security chiefs to forget the past. This not only betrays the legacy of disappearances but also neglects human history and the right to know. History will neither not forgive those criminals nor forget those who were disappeared.

Every year, we mark International Day of the Disappeared; but in Nepal, it is a great shame that we face injustice, witness continuous crimes and experience rule by criminals. The recollection of these events is important today, when the nation hears the voices of the disappeared and feels their suffering. The day is important for various reasons: to remind the state of its duties to uphold the rights of citizens, to recognise the surviving families’ agendas for truth and justice, to serve the victims’ community and to create a space in which full ownership and agency are not only possible but celebrated.

In Nepal, the powers that be have a record of betraying the trust of the people. One important component of sustainable peace is an effective and accessible truth telling mechanism. Disappearances need to be made a national agenda and the family agenda socialised to reintegrate thousands of families to respect the victims’ dignity. We need to speak out together for the truth.

August 30th marks the International Day of the Disappeared. This year, NEFAD together with the International Committee of the Red Cross and the Nepal Red Cross Society will be hosting an event in the memory of the more than 1,400 people disappeared during the People’s War. Regional events will be held as well. The events are as follows:

Central Event in Kathmandu

1. Main event on August 30 ICRC, NRCS and NEFAD, interaction and press release program at NRCS Hall, Kalimati at 11:00 am (about 100 families are participating in this program)

2. Joint program with National Human Rights Commission in Lalitpur at 2:00 pm.

3. Joint event with TJ Advocacy Group in the evening – Lighting the Memory candles and musical program at Patan Durbarsquare. From 5:00 pm onwards

Regional events

Midwestern Region in Gulariya, Bardiya District (400 families are participating in this program)

Eastern Region in Jhapa District (100 families are participating)

In the rest of districts, NEFAD is coordinating for commemoration program with Nepal Redcross Society across Nepal.

NEFAD has also prepared the following Solidarity Postcard that has been distributed to more than 1400 families across Nepal to commemorate the day.

The third amendment to the “Bill relating to providing for disappearances” put forth by the Transitional Justice Advocacy group deals with the section on limitation

Section 26 of the bill reads:

(1) The complaints shall have to be lodged within six months from the date a person is known to have disappeared, or the disappeared person becomes public.

(2) Notwithstanding anything contained in Sub-Clause (1), the complaints shall have to be lodged within six months of promulgation of this Act for those disappeared persons who were made disappeared before the commencement of this Act.

(3) Notwithstanding anything contained in Sub-Clause (2), the statute of limitation for bringing the complaints for the matters relating to the investigation to be carried out by the Commission shall be as prescribed by the Commission.

The proposed amendment states:

“There shall be no limitation for the offence of disappearance. Provided that, regarding the lodging of complaint in the Commission, complaint or information may be submitted to the commission under the procedure prescribed by the commission until the commission functions.”

With the following reasoning:

It is inherent characteristic of the act of enforced disappearance that the violation continues until the fate of the victim or the case of the disappearance is unresolved. Section (8) of the Convention against enforced disappearance clearly stated the continuous nature of the offence of disappearance. In its decision of 1 June 2008 the Supreme Court has stated that ‘provision on continuous search of the disappeared person is necessary until the fate of such person is resolved’. Nonetheless the fate of the disappeared is resolved, Section (8)(1)(a) of the convention states that the limitation is to be of long duration and proportionate to the extreme seriousness of this offence.

The second amendment to the “Bill relating to providing for disappearances” put forth by the Transitional Justice Advocacy Group is on the portion of the bill dealing with punishment

Section 6(1) of the bill reads:

Punishment:(1) The person, who commits the offence pursuant to this Act, shall be subjected to the following punishment:

(a) If anyone, by knowing the period and even the condition of the disappearance, disappears a person; the principal offender shall be subjected to an imprisonment of up to seven years years and a fine of up to Five Lac rupees.

(b) The person who indulges in an attempt to disappearances, or engages in a conspiracy, or act as an accomplice, or assists in any manner whatsoever, shall be subjected to half of the punishment imposed to the principal offender.

The proposed amendment states:

The person, who commits the offence pursuant to this Act, shall be subjected to the following punishment:

(a) If anyone, disappears a person; the principal offender shall be subjected, taking into consideration the period and condition of disappearance, to an imprisonment of three to fifteen years and a fine of up to a million rupees. Person committing a crime against humanity shall be liable for life-imprisonment.

With the following reasoning:

It is an essential element of the justice system based on rule of law that the punishment for the offence should be proportional. When disappearance is carried ouunder systematic policy, it becomes heinous crime. Therefore, Section (7) of the Convention against Enforced Disappearance has provided that the punishment should address the ‘extreme seriousness of the enforced disappearance’.

This is the first in a series following the previous post regarding the proposed amendments to the “Bill Relating to Providing for Disappearances” submitted by the Transitional Justice Advocacy Group. We will be listing the proposed amendment, preceded by the original text of the bill.

The first amendment was with regards to section 2(a) of the disappearance bill pertaining to definition

Section 2(a) Reads:

Definition: In this Act, unless the subject or context otherwise requires:
(a) “Disappearances” shall refer to the following acts:

(1) If any person arrested, detained, or taken control of by any other means, is not allowed to meet the concerned stakeholders even after the period to present her/him before the authority, which hears the case, has already been elapsed but no information in relation to where, how or in which condition the person has been kept is provided by the person having the legal authority to arrest, investigate or implement the laws, or by the security personnel, or deprived her/him from the protection of law.

(2) If any person is arrested or abducted, taken control of or deprived of from his/her personal liberty in any other ways by any organization or organized or unorganized group but no information is provided on such control or deprivation after twenty four hours time is elapsed, or no reason of such deprivation is furnished and no information in relation to where, how and in which condition the person has been kept is provided to the stakeholders.

The proposed amendment states:

In the Section 2(b), after 2 (a) of the proposed bill, definition of the ‘enforced disappearance as crime against humanity’ is to be included in the following manner:

In case the acts pursuant to Section 2 (a)(1) and (2) is part of the widespread or systematic attack targeted against civilian population, it shall denote ‘enforced disappearance crime against humanity’

With the following reasoning:

Under international law, specific legal condition is necessary for any act to become crime against humanity which equally applies in Nepal also. Therefore it is necessary to define ‘Enforced Disappearance Crime against Humanity’ along with ‘enforced disappearance’

NEFAD Chairman Ram Kumar Bhandari drafted these amendments on behalf of the Transitional Justice advocacy group. They were submitted to the chief whip of each of the major political parties – Nepali Congress, Communist Party of Nepal – United Marxist-Leninist, Communist Party of Nepal – Maoist, and the Madhesi Front – as well as members of the committees on the DC and TRC and more than 30 members of the Constituent Assembly.

Unfortunately at this point in time there is significantly less discussion regarding the Disappearance Commission Bill than the Truth and Reconciliation Commission. The DC bill is often overlooked in political deals including recent and previous extensions of the Constituent Assembly.

We will be posting the proposed amendments to the constitution over the next days, be sure to check back for detailed updates.